Freedom of testation or freedom from religion and taxation?
 

Author: 

Muneer Abduroaf and Najma Moosa
 

Summary:

This note, in the first place, analyses the right of a Muslim widow to claim maintenance from her deceased husband’s estate in terms of South African law (with some comparison to shared legal systems) where she was married to him only in terms of Islamic law (Shari’a), and secondly, the legitimacy of such a maintenance claim in terms of Islamic law. The analysis is based on the facts provided in a recent Western Cape High Court judgement pertaining to a situation where a Muslim widow was disinherited through her exclusion from the will of the deceased. Whilst testamentary freedom permits such disinheritance in terms of South African law, such freedom is limited in terms of Islamic law which, moreover, provides a list of compulsory beneficiaries which includes a wife in a polygynous marriage and which the widow in question claims to have been at the time of the death of the deceased. We conclude that in terms of Islamic law, a widow would not have been entitled to such maintenance but would, as of right, have been entitled to inherit. Further that while the disinherited Muslim widow made use of her right to claim maintenance in terms of South African law in order to claim her Islamic inheritance, the correct way forward would be for testators to execute valid wills that give effect to Islamic law and in doing so to accept the estate tax implications that follow.

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